Opinion
(June Term, 1860.)
Where upon the transfer of a note an endorsed credit was overlooked, so that the endorsee paid the full amount called for in the face of the paper, and afterwards, on being applied to and the mistake pointed out, the endorser said he was willing to do what an honest man ought to do, and paid back the amount of the credit thus overlooked, it was Held that this was no promise, express or implied, to pay, nor was it a distinct acknowledgment of a subsisting debt, so as to repel the statute of limitations.
ASSUMPSIT, tried before Shepherd, J., at Special Term, January, 1860, of GUILFORD.
McLean for plaintiff.
Morehead and Gorrell for defendant.
Rankin and McLean were indebted to the defendant as guardian of certain minor heirs, and afterwards, upon appointment of Gilmer to that office, the note of Rankin McLean was transferred to him by the defendant's endorsement. Two payments had been endorsed on the note, which were not noticed at the time of the transfer, and the plaintiff allowed the full value called for in the face of the note. Afterwards the parties met in the office of Mr. Gorrell, in Greensboro, and the plaintiff pointed out the mistake, and claimed to have the amount of these credits refunded to him. The defendant said "he was willing to do what an honest man ought to do" in the matter. It was then submitted to Mr. Gorrell to revise the transaction and ascertain whether the mistake complained of existed. Upon examining into the matter, Mr. Gorrell ascertained that there was a mistake and overpayment to the amount of these endorsed credits, which the defendant immediately rectified by paying back the amount, with interest, in money. The defendant being sued on the endorsement, pleaded the statute of limitations, to which the plaintiff replied, the above transaction as a new promise to pay. The court held that this was not a good reply to the statute. Plaintiff's counsel excepted.
Verdict for defendant, and appeal by plaintiff.
Whether a special replication of a new promise can be relied on to take the case out of the operation of the statute of limitations, when the action is brought by the endorsee against the endorser of a note, it is unnecessary for us to decide, for we cannot find in the facts stated in the present case any evidence of such promise, either express or implied. The rule has been so often laid down by our Court as to have become trite, that to repel the bar of the plea of the statute of limitations in the action of assumpsit there must be an express promise to pay, or a distinct acknowledgment of the claim as an existing debt from which a promise to pay it may be implied. See Vass v. Conrad, ante, 87, and the cases therein cited. There is certainly, in the present case, no pretense that the defendant expressly promised to pay the debt in dispute, and, to our apprehension, there is nothing shown from which it can be inferred that he acknowledged or intended to acknowledge it. From the testimony of Mr. Gorrell it appears that the defendant, as the former guardian of some minor children, had failed to pay the plaintiff, who had been appointed as his successor in the office, a certain sum which was due to the wards. The failure had been caused by the omission to take into account two credits endorsed on the note of Rankin McLean, which had been assigned, together with others, by the defendant to the plaintiff. The omission was rectified by the payment of the amount of these credits, but the payment was manifestly not one in part of the Rankin McLean note, and had no reference to the defendant's liability as the endorser thereof. It was made simply to correct a mistake, and for no other purpose whatever. The defendant neither did anything nor said anything that touched his liability as the endorser of the note in question, and therefore there was no acknowledgment of the debt as his from which there can be inferred a promise that he would pay it. We concur in the opinion of his Honor in the court below, that the plaintiff cannot recover, and the judgment of nonsuit must be
PER CURIAM. Affirmed.
(481)